Court File and Parties

COURT FILE: SCA 15-365 DATE: 2016 05 27 ONTARIO SUPERIOR COURT OF JUSTICE (Summary Conviction Appeal Court)

B E T W E E N:

HER MAJESTY THE QUEEN A. S. Hamilton, for the Respondent Respondent

- and -

SAMIR IBRAHIM N. Owodunni and M. Tubie, for the Appellant Appellant

HEARD: May 26, 2016, at Guelph

REASONS FOR JUDGMENT

[on appeal from convictions by Douglas J. on April 1, 2015]

HILL J.

Introduction

[1] After a trial, the appellant was convicted of uttering a threat to cause bodily harm and of breaching the term of an outstanding recognizance that he keep the peace and be of good behaviour by uttering the threat.

[2] The appellant abandoned his appeal against sentence.

[3] On appeal, counsel for the appellant largely repeated submissions made before the summary conviction trial court. The substance of the argument was that the trial court erred in finding that a blind man, frustrated with a transportation provider, uttered words over a cellphone which constituted a threat to cause bodily harm.

[4] At the conclusion of the oral argument the appeal was dismissed with these reasons to follow.

Factual Background

[5] At the relevant time, Donna Beatty and John Alves were employed by Guelph Mobility Transit (GMT) – Beatty as a driver of a mobility vehicle and Alves as a supervisor.

[6] The evidence at trial established that there had been a history of friction between the appellant and Beatty and, to a lesser extent, Alves.

[7] On June 25, 2014, in the morning, Ms. Beatty was scheduled to pick the appellant up at his residence in Guelph. The appellant is vision-impaired.

[8] According to Ms. Beatty’s evidence, as she waited with one passenger on her bus, the appellant approached with a shopping cart in each hand. He also had a folded white cane.

[9] The policy of GMT, for reasons explained at trial, is that a passenger may only take one shopping cart onto a GMT bus.

[10] Ms. Beatty testified that she said, “Good morning, Samir” before reminding him about the 1-cart rule and their prior discussions about the limitation.

[11] In his trial testimony, the appellant suggested that other GMT drivers had not said anything when he boarded with two shopping carts. In cross-examination, the appellant gave his evidence:

Q. Donna Beatty was enforcing the policy of the service?

A. Yeah, I guess.

Q. They have a policy and she’s simply enforcing the policy.

A. I guess so, sir. I guess so.

[12] The appellant boarded the bus with two carts ignoring Beatty’s statements. The witness recalled that the appellant said, “You hate me”. The appellant maintained that he had permission for two carts. He developed an accusatory tone and spoke in “a very loud voice”. Ms. Beatty described the appellant as “a large gentleman”. Ms. Beatty described the appellant as upset. She found him “very intimidating”.

[13] Ms. Beatty decided to use her cellphone to call her supervisor to report the incident and to see if some authorization could be given for two shopping carts. According to the witness, while communicating with Mr. Alves, the appellant took away her phone:

... and then Samir took my phone. And he had a stick in his hand, folded, and he’s like this. And I’m thinking “Okay…

Q. All right. So you kind of have the stick – he’s waving the stick?

A. He had – well he folded it – when he sits down he folds it, but he has it in his hand. And so I’m thinking “Okay”

And I think it’s really bad that he’s taken my phone and he’s told me to shut up. So I’m thinking “Okay, I’m going to – my customer’s upset. I’m just going to take my customer and maybe get off the bus with her.”

THE COURT: I missed something. Did you say that he grabbed your phone?

MS. BEATTY: Well he was standing there and says “Here, let me talk to him” and at the same time he’s taking my phone.

THE COURT: So he did grab your phone.

MS. BEATTY: Yes.

THE COURT: So did you get it back from him?

MS. BEATTY: Yes I did. Yes I did. As I went to get my passenger while he was talking, he hung up the phone and he did give it back to me.

[14] In his testimony, Mr. Alves confirmed how he came to speak to the appellant:

… at that point, just as we’re starting a conversation – at that point, Mr. Ibrahim managed to get her phone. So – then he started yelling at me…

[15] In his evidence, the appellant denied that he grabbed Ms. Beatty’s phone.

[16] Mr. Alves, who had never met the appellant in person prior to June 26, 2014, testified that the appellant stated: “John, I’m sick and tired of you ... Come down here and I will kick your ass”. The witness’ evidence was that he felt he had been threatened:

… [he] was yelling at me, very aggressive.

… at that point, I felt it was a serious threat…

Q. …when he said that you …[you] took it seriously?

A. Yes.

I was very concerned…because of the past history…I didn’t know the individual. I had never met him, so I was not aware of any – what the abilities were. So I was very concerned…not only for myself but…for the bus driver…and any passengers that are on board.

Q. And if he’s blind you could just move off the bus and he wouldn’t know it, would he?

A. That’s possible, yes.

Q. So it’s fair to say that Mr. Ibrahim simply would not be able to physically harm you.

A. I didn’t know that at the time.

[17] At trial, Mr. Alves described his reference to “past history”. On an earlier occasion, in a telephone conversation on another date, Mr. Alves had been compelled to go over the GMT policy with the appellant respecting boarding with one bundle buggy only. On that occasion, the appellant argued and yelled and, at a point, said that Alves “should be dead”.

[18] In cross-examination, the appellant was asked if he had had a phone conversation with Mr. Alves on a prior occasion:

Q. So there was a prior conversation with Mr. Alves where you were upset with him?

A. A hundred percent before, yes…

[19] Guelph Police Service Constable Bryan McKean testified that he responded to a dispatch to the scene of the stopped GMT bus about the same time that John Alves arrived. The officer testified that the appellant’s attitude became increasingly upset, belligerent and aggressive.

[20] The witnesses Beatty, Alves and McKean were all cross-examined about whether the appellant spoke quickly with a heavy accent and was difficult to understand when he spoke. The witnesses all stated that they were able to comprehend everything said by the appellant.

[21] The appellant testified that he was upset but the words he spoke to John Alves were, “Get your ass over here to speak”.

The Trial Court Reasons

[22] At trial, counsel for the appellant raised these issues:

(1) given the appellant’s evidence as to the words he actually spoke, as a quick speaker, excited and with an accent, speaking on a cellphone, has the prosecution established beyond a reasonable doubt that the appellant uttered the words alleged by Mr. Alves?

(2) how could the words, “kick your ass” be reasonably interpreted as a threat to cause bodily harm?

[23] In his reasons for judgement, Douglas J.:

(1) self-instructed on the elements of the crime of threatening as explained in R. v. Clemente, 1994 SCC 49, [1994] 2 S.C.R. 758

(2) after assessing the credibility of the witnesses, accepted John Alves’ evidence as to the words uttered by the appellant and rejected the appellant’s version as to what he said in the relevant phonecall and, having regard to the W.D. framework was satisfied beyond a reasonable doubt that the statement, “I’m going to kick your ass”, was made

(3) concluded on the totality of the evidence, paying close attention to the “context” of the communication, that the words the appellant uttered amounted to a threat to cause bodily harm – words spoken with intent to instill and intimate.

Analysis

[24] In R. v. McRae, 2013 SCC 68, [2013] 3 S.C.R. 931, at paras. 8 to 19, the elements of the crime of uttering a threat to cause bodily harm were described in detail:

8 The respondent is charged with the offence of uttering threats, provided for in s. 264.1(1)(a) of the Criminal Code:

264.1 (1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat

(a) to cause death or bodily harm to any person;

9 This Court has previously considered this offence in R. v. McCraw, 1991 SCC 29, [1991] 3 S.C.R. 72, R. v. Clemente, 1994 SCC 49, [1994] 2 S.C.R. 758, and more recently in R. v. O'Brien, 2013 SCC 2, [2013] 1 S.C.R. 7. The elements of the offence include: (1) the utterance or conveyance of a threat to cause death or bodily harm; and (2) an intent to threaten. We review here the law relating to each element.

(1) The Prohibited Act (Actus Reus)

10 The prohibited act of the offence is "the uttering of threats of death or serious bodily harm" (Clemente, at p. 763). The threats can be uttered, conveyed, or in any way caused to be received by any person. The question of whether words constitute a threat is a question of law to be decided on an objective standard. Justice Cory put it this way in McCraw:

The structure and wording of s. 264.1(1)(a) indicate that the nature of the threat must be looked at objectively; that is, as it would be by the ordinary reasonable person... .

The question to be resolved may be put in the following way. Looked at objectively, in the context of all the words written or spoken and having regard to the person to whom they were directed, would the questioned words convey a threat of serious bodily harm to a reasonable person? [pp. 82-83]

11 The starting point of the analysis should always be the plain and ordinary meaning of the words uttered. Where the words clearly constitute a threat and there is no reason to believe that they had a secondary or less obvious meaning, the analysis is complete. However, in some cases, the context reveals that words that would on their face appear threatening may not constitute threats within the meaning of s. 264.1(1)(a) (see, e.g., O'Brien, at paras. 10-12). In other cases, contextual factors might have the effect of elevating to the level of threats words that would, on their face, appear relatively innocent (see, e.g., R. v. MacDonald (2002), 2002 ONCA 14251, 166 O.A.C. 121, where the words uttered were "You're next").

12 For example, in R. v. Felteau, 2010 ONCA 821, the accused had told a mental health care worker that he was going to follow Ms. G, his former probation officer, and "assault" her (paras. 1-2). The trial judge found that the words did not constitute a threat because the threat must be of death or bodily harm and the accused's reference to "assault" [page938] did not necessarily include bodily harm (para. 3). The Court of Appeal for Ontario found that the trial judge had erred in looking at the word "assault" in isolation from the circumstances (para. 7). The court held that the factors relevant to the determination of the meaning of the words included the facts that: the accused was fixated upon Ms. G and had very recently been convicted of harassing her; he was angry with Ms. G when he uttered the words; he blamed her for his arrest and detention; and he was mentally unstable, had been consuming cocaine and had a known history of serious violence directed at women (para. 8). The Court of Appeal concluded that the accused's words, viewed in these circumstances, would convey a threat of bodily harm to a reasonable person (para. 9).

13 Thus, the legal question of whether the accused uttered a threat of death or bodily harm turns solely on the meaning that a reasonable person would attach to the words viewed in the circumstances in which they were uttered or conveyed. The Crown need not prove that the intended recipient of the threat was made aware of it, or if aware of it, that he or she was intimidated by it or took it seriously (Clemente, at p. 763; O'Brien, at para. 13; R. v. LeBlanc, 1989 SCC 56, [1989] 1 S.C.R. 1583 (confirming the trial judge's instruction that it was not necessary that "the person threatened be ever aware that the threat was made": (1988), 1988 NBCA 131, 90 N.B.R. (2d) 63 (C.A.), at para. 13)). Further, the words do not have to be directed towards a specific person; a threat against an ascertained group of people is sufficient (R. v. Rémy (1993), 1993 QCCA 3851, 82 C.C.C. (3d) 176 (Que. C.A.), at p. 185, leave to appeal refused, [1993] 4 S.C.R. vii (threat against "police officers" generally); R. v. Upson, 2001 NSCA 89, 194 N.S.R. (2d) 87, at para. 31 (threat against "members of the black race" generally)).

14 The reasonable person standard must be applied in light of the particular circumstances of a case. As the Court of Appeal for Ontario explained in R. v. Batista, 2008 ONCA 804, 62 C.R. (6th) 376:

An ordinary reasonable person considering an alleged threat objectively would be one informed of all the circumstances relevant to his or her determination. The characteristics of a reasonable person were considered by the Supreme Court of Canada in R. v. S. (R.D.), 1997 SCC 324, [1997] 3 S.C.R. 484 (S.C.C.), in the context of the test for bias. In that case, L'Heureux-Dubé and McLachlin JJ., at para. 36, described such a person as a:

reasonable, informed, practical and realistic person who considers the matter in some detail... . The person postulated is not a "very sensitive or scrupulous" person, but rather a right-minded person familiar with the circumstances of the case.

Similarly, in R. v. Collins, 1987 SCC 84, [1987] 1 S.C.R. 265 (S.C.C.), at p. 282, in the context of the test for bringing the administration of justice into disrepute, Lamer J. for the majority describes a reasonable person as "dispassionate and fully apprised of the circumstances of the case": see also R. v. Burlingham, 1995 SCC 88, [1995] 2 S.C.R. 206 (S.C.C.), at para. 71.

It follows that a reasonable person considering whether the impugned words amount to a threat at law is one who is objective, fully-informed, right-minded, dispassionate, practical and realistic. [Emphasis added; paras. 23-24.]

15 Thus, while testimony from persons who heard or were the object of the threat may be considered in applying this objective test, the question in relation to the prohibited act is not whether people in fact felt threatened. As the Court of Appeal for Ontario put it in Batista, witness opinions are relevant to the application of the reasonable person standard; however, they are not determinative, given that they amount to personal opinions and "d[o] not necessarily satisfy the requirements of the legal test" (para. 26).

16 To conclude on this point, the prohibited act of the offence of uttering threats will be made out [page940] if a reasonable person fully aware of the circumstances in which the words were uttered or conveyed would have perceived them to be a threat of death or bodily harm.

(2) The Fault Element (Mens Rea)

17 The fault element is made out if it is shown that threatening words uttered or conveyed "were meant to intimidate or to be taken seriously" (Clemente, at p. 763).

18 It is not necessary to prove that the threat was uttered with the intent that it be conveyed to its intended recipient (Clemente, at p. 763) or that the accused intended to carry out the threat (McCraw, at p. 82). Further, the fault element is disjunctive: it can be established by showing either that the accused intended to intimidate or intended that the threats be taken seriously (see, e.g., Clemente, at p. 763; O'Brien, at para. 7; R. v. Neve (1993), 1993 ABCA 14708, 145 A.R. 311 (C.A.); R. v. Hiscox, 2002 BCCA 312, 167 B.C.A.C. 315, at paras. 18 and 20; R. v. Noble, 2009 MBQB 98, 247 Man. R. (2d) 6, at paras. 28 and 32-35, aff'd 2010 MBCA 60, 255 Man. R. (2d) 144, at paras. 16-17; R. v. Heaney, 2013 BCCA 177, at para. 40; R. v. Rudnicki, 2004 QCCA 39133, [2004] R.J.Q. 2954 (C.A.), at para. 41; R. v. Beyo (2000), 2000 ONCA 5683, 47 O.R. (3d) 712 (C.A.), at para. 46).

19 The fault element here is subjective; what matters is what the accused actually intended. However, as is generally the case, the decision about what the accused actually intended may depend on inferences drawn from all of the circumstances (see, e.g., McCraw, at p. 82). Drawing these inferences is not a departure from the subjective standard of fault.

See also R. v. O’Brien, 2013 SCC 2, [2013] 1 S.C.R. 7, at para. 13; Clemente, at paras. 7-14; R. v. McGraw, 1991 SCC 29, [1991] 3 S.C.R. 72, at paras. 15-26, 37, 42; R. v. Smith, 2011 ONCA 564, at paras. 65-70; R. v. Felteau, 2010 ONCA 821, at paras. 5 – 9; R. v. Batista (2008), 2008 ONCA 804, 238 C.C.C. (3d) 97 (Ont. C.A.), at paras. 12-20, 23-27.

[25] The trial judge had the inestimable advantage of seeing and hearing the witnesses. The court accepted Alves’ evidence as to the words spoken by the appellant rejecting the appellant’s evidence to the contrary and the implicit suggestion in cross-examination that a mistake could be made in identifying his words because of accent, pace of speech, etc.

[26] The trial judge’s finding beyond a reasonable doubt as to the words uttered is neither unreasonable nor unsupported on the evidence applying the analytical review described in R. v. Ellis, 2016 ONCA 358, at paras. 28-30; R. v. Smith, 2016 ONCA 25, at paras. 71-75, 78.

[27] Turning to the factual context as to whether the words amounted to a threat, Mr. Tubie submitted on the appellant’s behalf that:

(1) the words, “I will kick your ass” can have a range of meaning unlike less equivocal utterances expressing an intention to “stab” or “shoot” someone

(2) the words spoken over the phone by a visually-impaired person in circumstances of frustration would not, to a reasonable person, convey a threat of bodily harm

(3) the intention of any words spoken really amounted to a demand of “Do your job”, not a threat.

[28] Focussing on the words reported by Mr. Alves, “Come down here and I will kick your ass”, this statement is reasonably open to the interpretation that the recipient of this invitation would be subjected to serious harm. The commonly understood meaning of the expression “kick your ass” extends considerably beyond a literal interpretation of delivery of a foot kick to the backside of another individual. This is also evident from the context of the expression as seen in the circumstances of various cases – see, for example, R. v. Meszaros, 2013 ONCA 682, at para. 16; R. v. Lidstone, [1997] B.C.J. No. 955 (C.A.), at para. 11.

[29] The appellant’s factum, at para. 10, acknowledges the notion of a beating associated with use of this phrase:

The words held to have been used mean: “To beat decisively; to give a severe beating; to rough someone up.” – Google search definition of the American Phrase.

(emphasis of original)

[30] In R. v. Cassidy, [2007] B.C.J. No. 2103 (Prov. Ct.), at paras. 19, 24-25, the words “I’m going to kick your ass” were held to amount, in law, to a threat within the meaning of s. 264.1 of the Code.

[31] In the present case, the words did not stand alone. They were uttered by an angry, hostile, and apparently unstable individual who had just intimidated a GMT driver and grabbed her phone and who had previously told the complainant that he should be “dead”. While only a factor in applying the objective test, Mr. Alves, in light of past history with the appellant, very clearly felt threatened for his personal safety on hearing the words spoken. The appellant’s visual impairment would not detract from the prospect of danger to the safety of this recipient of the words spoken.

[32] The evidence reasonably supports the trial judge’s conclusion that the words spoken by the appellant would be construed by a reasonable person in these circumstances as a threat of serious bodily harm.

[33] Further, the finding of the trial court that the appellant, in uttering the words he did, had “the intent to … intimidate”, was a reasonably available determination of the whole of the evidence.

Conclusion

[34] Appeal dismissed.

Hill J.

DATE: May 27, 2016